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The Constitutional Court, in Voice of the Unborn Baby NPC v Minister of Home Affairs, was faced with a request to recognise a constitutionally protected right to bury a deceased previable foetus. This is a sensitive topic, since many persons who lose a foetus in utero wish to bury the remains for personal or religious purposes. Prior to this case, the general understanding was that such burials were prohibited in terms of the Births and Deaths Registration Act (BADRA), which allows the burial only of viable foetuses. The case, therefore, turned on whether BADRA permits the burial of a deceased previable foetus and, if not, whether this is unconstitutional. The applicants requested that the court declare that prospective parents have a right to bury their previable foetuses. The High Court found that BADRA does not allow such burials, and that this is unconstitutional. The Constitutional Court, however, found that BADRA does not prohibit such burials, since such deaths are not covered by the Act at all. This article discusses the lacuna that the Constitutional Court's decision created. It specifically considers whether such a right is protected in the Bill of Rights, and what the current law is regarding the burial ofpreviable foetuses, given the finding that this matter is not covered by BADRA.

In an eviction matter, the court is required to consider all relevant circumstances and grant an order that is just and equitable. An important relevant circumstance to be considered is whether the unlawful occupiers have alternative accommodation. Courts are reluctant to grant eviction orders that would leave the unlawful occupiers homeless. In matters where unlawful occupiers are unable to secure their own alternative accommodation, courts often look to the state to provide alternative accommodation. Courts have ordered the state to provide alternative accommodation to the unlawful occupiers in certain cases as a condition of the eviction order (an alternative accommodation order). This thesis seeks to determine when an alternative accommodation order as a condition to the eviction of unlawful occupiers in terms of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE) would comply with the court's constitutional mandate. Two criteria are determined against which to test whether alternative accommodation orders comply with the court's constitutional mandate. First, the court's constitutional mandate requires that its orders adhere to the existing legal framework. Second, the court's constitutional mandate requires that its orders respect the functions of the branches of government. An alternative accommodation order would only adhere to the legal framework if there is a valid ground for placing this duty on the state. The possible grounds for holding the state liable relate to its constitutional duty to respect, protect, promote and fulfil human rights. One possible ground relates to the state's duty to fulfil the unlawful occupiers' right of access to adequate housing by implementing reasonable short-term housing programmes. Hence, whether the state has a duty to accommodate the unlawful occupiers within its short-term housing programme is a relevant circumstance to be considered by the court. A finding that the state has a duty to accommodate the unlawful occupiers, immediately, is likely to lead to an eviction with an order against the state to provide alternative accommodation, regardless of the other circumstances. If the state does not have a duty to accommodate the unlawful occupiers immediately in terms of its duty to fulfil human rights, its liability to provide alternative accommodation might still be found on its duty to respect and protect human rights. This is because, under some circumstances, the granting of an eviction order that results in homelessness might violate the rights of the unlawful occupiers, whereas a denial of the eviction or a delay in the granting or execution of an eviction order might violate the rights of the landowner. Placing the duty on the state to prevent or mitigate the violation by compensating either of the parties could be justified due to the state's duty to respect and protect human rights. As an alternative to compensation, a court could order the state to provide alternative accommodation to the unlawful occupiers. These two possible grounds for alternative accommodation orders are analysed to determine when alternative accommodation orders based on these grounds would adhere to the existing legal framework and respect the functions of the branches of government. These grounds are likely to have the same outcome. For both grounds, certain factors weigh heavily against an alternative accommodation order: blameworthiness on the part of the unlawful occupiers, a lack of blameworthiness on the part of the state, a finding that the state's limited resources should rather be spent on others who are needier or more deserving. In the conclusion of the thesis, recommendations are made regarding two problem areas in granting alternative accommodation orders in eviction matters - the availability of state resources and the burden of proof.

Intro -- Editorial -- Menschenrechte im Ausnahmezustand -- Gerd Oberleitner -- Das bedrohte Leben der Nation -- Christine Binder -- Human Rights in Times of Emergency -- Claudia Zilla und David Keseberg -- Venezuela: Menschenrechte im Ausnahmezustand -- Thomas Demmelhuber -- Ausnahmezustand als Herrschaftstechnik? -- Radley Henrico and Sarah Fick -- The State of Emergency under the South African Apartheid System of Government: Reflections and Criticisms -- M. Ehteshamul Bari -- The Impact of Declarations of Emergency on Human Rights -- Hintergrund -- Jörg Maywald -- Menschenrechte für Kinder -- Michael Krennerich -- Straight 18 - und die menschenrechtliche Kritik an Minderjährigen in der Bundeswehr -- Forum -- Heiner Bielefeldt -- Moyn's World -- Buchbesprechungen -- Cécile Laborde (2017): Liberalism's Religion, Cambridge/Ma., London, Harvard University Press, 344 S., 36.00 , 28.95 £, 32.50 € -- Philipp Gisbertz (2018): Menschenwürde in der angloamerikanischen Rechtsphilosophie, Baden-Baden, Nomos, 408 Seiten, 104,00 € -- Autorinnen und Autoren.